Duncan Hollis: Somalia and Self-Defense -- “The Lawyers Always Ask For Details”

[Email subscription to blog articles]

Posted by Duncan Hollis:
Somalia and Self-Defense -- “The Lawyers Always Ask For Details” 
http://www.opiniojuris.org/posts/1168445058.shtml


   On Sunday, U.S. forces attacked what the Defense Department is
   characterizing as ââprincipal Al Qaeda leadershipâ operating in the
   southern part of Somalia." DODâs [1]information on the attack is
   pretty sketchy, but the official Defense Department news story
   indicates that the targets were âterrorists who may have struck the
   U.S. embassies in Kenya and Tanzania.â [Update: The New York Times
   [2]is reporting the attacks may have killed Fazul Abdullah Mohammed,
   who orchestrated the 1998 East Africa Embassy bombings.] The State
   Departmentâs [3]press briefing yesterday added few details, but I
   loved the comment by Department Spokesman Sean McCormak (at approx.
   the 2:26 mark) that he couldnât answer whether any of the targeted
   terrorists, if captured, would qualify as enemy combatants because
   âthe lawyers always ask for details" so that categorizations could not
   be made on the basis of mere hypotheticals. Meanwhile, new U.N.
   Secretary General Ban Ki-moon [4]expressed concern over the
   humanitarian impact of the attacks ânotwithstanding the motives.â
   So, Iâm a lawyer. And, Mr. McCormak is right â I want more details.
   What was the legal motivation for this use of force? As we all know,
   the U.N. Charter prohibits the use of force except where authorized
   under [5]Chapter VII or where there is a case for exercising the
   inherent right of self-defense. As to Chapter VII, although the U.N.
   Security Council [6]condemned the attacks on the embassies in Nariobi
   and Dar es Salaam in 1998, I donât read it as an authorization for the
   use of force against those responsible. Operative paragraph 3 does
   call âupon all States and international institutions to cooperate with
   and provide support and assistance to the ongoing investigations in
   Kenya, Tanzania and the United States to apprehend the perpetrators of
   these cowardly criminal acts and to bring them swiftly to justice.â
   But I doubt that âjusticeâ necessarily equates to gunship attacks.
   And, given that the U.S. explanation seems keyed to the 1998 attacks,
   I wonder whether that precludes the United States from relying on any
   later U.N. Security Council resolutions that might have broader
   language with respect to authorizing the use of force to combat
   terrorism.
   And what of self-defense? Certainly, the United States can argue that
   it was the victim of an âarmed attackâ in 1998 and it has a legal
   right to respond against those who attacked it. After all, thatâs the
   âclassicâ formulation of the doctrine. But, I wonder how well it holds
   up here, given that the U.S. response comes now more than eight years
   after the original attacks? Putting aside the issues of
   proportionality implicit in Secretary General Banâs comments, the
   length of time between the attack and the response raises interesting
   questions about the notion of âimmediacyâ â i.e., how international
   law limits the time within which states may respond to armed attacks.
   Indeed, if eight years is O.K., as well it might be, where do we draw
   the line? Can a state wait 15 years to respond to an armed attack?
   What about 30 years? Donât such delayed responses risk, as the [7]New
   York Times today is indicating is the case in Somalia, the perception
   that the response was more about revenge than self-defense? And what
   of the idea that self-defensive actions must be necessary â doesnât
   necessity get harder to claim the more time passes? More generally,
   might the doctrines of estoppel or laches kick in, given other statesâ
   growing reliance interests that further uses of force are not
   forthcoming? Otherwise, doesnât the international system risk great
   instability if a state knows it can bide its time and wait years, or
   even decades, for the right opportunity to respond to an armed attack
   against it?
   Given such questions, I would not be surprised if the United States
   does not rely only on the classic formulation of the self-defense
   doctrine, but also justifies these attacks as an instance of
   preemptive self-defense. Indeed, my former boss [8]Will Taft argued
   that, as much as one could see the U.S. intervention in Afghanistan as
   a reaction to an armed attack, it was also a case of preemptive
   self-defense given the imminent threat of harm from additional Al
   Qaeda attacks. Obviously, other states are much more skeptical about
   the availability of preemptive self-defense under the U.N. Charter.
   Still, you can see hints of such thinking in McCormackâs statements
   yesterday, when he talks about the fact that the terrorist targets had
   enjoyed something of a âsafe havenâ in Somalia and the U.S. attacks
   were designed to ensure that these people didnât escape to set up a
   new base from which they could threaten U.S. interests again.
   Now, let me be clear â I donât mean to question the horror inflicted
   by Al Qaedaâs 1998 attacks or the United Statesâ right to bring those
   who perpetrated them to justice. Indeed, I was actually sent by the
   State Department to Kenya some weeks after the 1998 attacks. Iâll
   never forget standing among the ruins of what had been the U.S.
   embassy with bodies literally still sealed inside what remained of the
   structure. Nor, will I ever forget working with those whoâd survived
   the attacks, still coming to work through Marine Corps pill boxes day
   after day, notwithstanding the tremendous losses they had suffered.
   So, Iâm not questioning the United Statesâ moral or political reasons
   for responding. Itâs just that as a lawyer, and as someone who saw
   what happened there, I want more details.

References

   1. http://www.defenselink.mil/News/NewsArticle.aspx?id=2625
   2. http://www.nytimes.com/2007/01/10/world/africa/09cnd-somalia.html?hp&ex=1168491600&en=d17238f4bafd29ee&ei=5094&partner=homepage
   3. http://video.state.gov/ifr_main.jsp?nsid=b-7c8d0189:1100c46a207:-65d4&fr_story=6651626ab6ab413749a9f7369121b0fcc7f3d166&st=1168437504031&mp=WMP&cpf=true&fvn=8&fr=011007_085826_w7c8d0189x1100c46a207xw65d3&rdm=750514.839906604
   4. http://www.un.org/apps/news/story.asp?NewsID=21195&Cr=somalia&Cr1=
   5. http://www.un.org/aboutun/charter/chapter7.htm
   6. http://daccessdds.un.org/doc/UNDOC/GEN/N98/237/77/PDF/N9823777.pdf?OpenElement
   7. http://www.nytimes.com/2007/01/10/world/africa/10somalia.html
   8. http://www.cfr.org/publication.html?id=5250